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4 - ‘Sick-Maintenance’ and Earlier English Law

Published online by Cambridge University Press:  02 March 2023

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Summary

This chapter is concerned with a form of reconciliation attested in Irish and other Indo-European traditions and arguably present in some Anglo-Saxon legislative evidence as well. Its most familiar occurrence, however, is in a text far removed from early medieval Europe:

When individuals quarrel and one strikes the other with a stone or fist so that the injured party, though not dead, is confined to bed, but recovers and walks around outside with the help of a staff, then the assailant shall be free of liability, except to pay for the loss of time, and to arrange for full recovery.

That it has become customary to refer to Exodus 21:18–19 as an instance of ‘sick-maintenance’ shows how decisively our understanding of this institution has been shaped by studies less interested in the biblical ordinance than its supposed analogues within various branches of Indo-European. The term ‘sick-maintenance’ is a close translation of the Irish folog n-othrusa, and although they conceivably postdate the events of Exodus by millennia, Irish ordinances have long been held to preserve a more archaic form of the institution than is found even in the laws of Moses. According to D. A. Binchy, whose article of 1934 remains the authoritative discussion of the subject,

the Old Irish law preserves for us … the relics of a more primitive system [than is found in Exodus]. In the earliest texts we find that the injurer, instead of paying the “leech-fee”, must undertake the duty of nursing his victim back to health and providing him with medical attendance.

An ordinance composed in Hittite (1500 BCE) suggests that the customs described above have roots deep in the Indo-European past:

If anyone injures a [free] person and temporarily incapacitates him, he shall provide medical care for him. In his place he shall provide a person to work on his estate until he recovers. When he recovers [his assailant] shall pay him six shekels of silver and shall pay the physician’s fee as well.

Similar provisions in sources as far-flung as the code of Manu led Calvert Watkins in 1976 to label sick-maintenance ‘an inherited feature of Indo-European customary law.’ Though this conclusion has since found wide acceptance, the views of Binchy and Watkins are not always repeated without reservations in present-day scholarship.

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Publisher: Boydell & Brewer
Print publication year: 2014

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